Tuesday, May 7.
On some hot words that passed betwixt Capt. Bertie
(fn. 1) , and Mr
Mr Hampden, sen.] I have taken notice of some
angry words betwixt these two Gentlemen. I move that
they may stand up, man by man, and engage, upon their
honours, not to proceed farther in this difference.
Col. Mildmay.] I hope that you will not put it upon
your Books, that a quarrel has been here, and your Votes
to be sent abroad.
The Speaker.] Let both the Gentlemen stand up at one
time, and no priority, or precedency, in the Declaration.
Mr Harbord.] The Gentleman (Mr Bertie) is of too
much honour to engage one that has not the use of either
of his hands. If I have been ill-used, I cannot pass my
word not to proceed farther, without satisfaction; therefore, pray consider with yourselves what you have to do.
It is a hard thing for me to acknowlege I have received
an injury, and require no reparation for it.
Sir William Williams.] If Mr Harbord, said, "There
were Pensioners in the Long Parliament," your Books say
so, and any man may.
Sir Christopher Musgrave.] I am sorry for the occasion
of this Debate. As Harbord is a man of honour, so he
has expressed great honour relating to the other Gentleman.
But we ought to declare, what was the occasion of the misunderstanding; and, I hope, these honourable Persons will
declare they will proceed no farther.
The Speaker.] The two Gentlemen say nothing; you
must lay the commands of the House upon them to declare.
Mr Harbord.] I do not conceive myself injured at all.
Mr Leveson Gower.] I think these Gentlemen both men
of honour. 'Tis out of their power to proceed any farther. The House will take care they shall not do it.
Therefore they may declare.
Mr Bertie.] I apprehended Harbord reflected upon me
as a Pensioner. I thought I was reflected upon about the
Election at Westbury.
Mr Hampden, sen.] I heard the words of "Pensioner—
Parliament." I remember, Sir Stephen Fox had Questions
put to him upon every Member of the House about receiving Pensions. (See Vol. vii. p. 323.)
Mr Garroway.] The whole thing these Gentlemen stand
upon is a Punctilio, who shall stand up first and declare.
I would write both their names, and put them in a hat, and
let them draw out who shall declare.
Sir Christopher Musgrave.] This is a tender point before
you, and nicety in the thing. I offer it, that both may
come to the Table at the same time, and there underwrite,
"That they will not prosecute the quarrel any farther."
Mr Bertie.] If Harbord will say he intended no personal
reflection upon me, I will be satisfied.
Col. Mildmay.] Punctilio of Honour is a great point;
but it is the general opinion of the House, that no
words were spoken of particular reflection by Harbord,
but generally as the Parliament-Men were called over. So
many judgments having passed, methinks these Gentlemen
should be more free, without putting the House or themselves to farther trouble. If not, you may make use of
Mr Colt.] The depth of the matter lies upon what will
be discoursed without doors; therefore I am for your
Members coming to the Table, as has been moved.
Mr Hampden, sen.] I think, it is equal for both their
Honours. I apprehend, Mr Speaker, that it is your part
to make an Order, "That being informed of some angry
words betwixt these Gentlemen, upon which a quarrel may
ensue, they be taken into Custody." This is your duty,
that no mischief may ensue.
The Speaker.] 'Tis no dishonour to put these persons
under restraint, for it is your Work and Order; and then
friends may interpose.
Mr Harbord.] Do you think imprisoning me would
frighten me to petition for release? I do not think myself
injured, and can it be thought a man of my age would
quarrel when I am not injured? If you do commit me,
what will become of the King's business?
Mr Herbert.] I would have you very careful what sort
of Question you put. One declares, "he does not think
himself injured:" He has done it. All know there were
Pensions, and if Bertie had thought himself injured, he
should have complained. I would have them both stand
up, and declare, as has been moved.
(fn. 2) .] I remember the case of Westbury. I have
heard Bertie say, "If Harbord will declare he meant not
him, he is satisfied."
Mr Harbord.] I have heard it said, as if the thing seems
too nice; it is not that at all. I could tell tales, if I
were provoked, on the other side.
Sir Henry Capel.] I am concerned for both these honourable Gentlemen; one has been my friend these many years,
the other is related to me; but it is the House must be judge
of one and the other. As for that of Pensions, it has been
universally spoken of, and will be still, that the Government
may not be under any corruptions whatsoever. First,
Harbord says, "he is not injured;" therefore, if Bertie
will say, "he apprehends himself not reflected on."—Or
rather that the House vote there is no injury done—
Mr Harbord.] To put an end to this, write down what
I should say, and I will say it, and obey you.
The Speaker proposed these words to be spoken by the two
Gentlemen, viz "I do promise, upon my word and honour, not to
prosecute any quarrel, upon this occasion;" which was accordingly done.
Wednesday, May 8.
A Bill for establishing the Articles presented by the Lords
and Commons to their Majesties, and for settling the Crown,
was read the third time.
Mr Godolphin.] After the Limitation, in the first place,
upon the King, Queen, and her Heirs, and Princess
Anne, &c. when this Limitation is spent, where will you
go next? Where shall the Crown devolve, all these dying without Issue? Therefore I humbly offer this Proviso: "Provided always, and be it hereby declared,
That nothing in this Act is intended to be drawn into
Example, or Consequence, hereafter, to prejudice the
Right of any Protestant Prince, or Princess (fn. 3) , in their
hereditary Succession to the Imperial Crown of these
Mr Garroway.] You are upon a high point. I do believe, this Proviso was brought in by this Gentleman
with a good intention; but, whether it be full enough
not to break into the Limitation of the Act?—'Tis more
expressive than the word "hereafter." I would not leave
any loop-hole in the Bill, for any to come to the Crown
that you intend not. God knows how soon any body may
die; therefore I would not leave it at large. Those who
expect a Common-wealth in England, by failure of those
you have named, I would disappoint them all. But if
there be any umbrage, that the thing is not full, I would
have it so, and shall agree to it.
Mr Attorney Treby.] This Proviso does not well agree
with the Bill. He that spoke for retaining the Proviso,
says, "He respects nobody by it in particular in the
Bill, but to clear the matter of the Succession hereafter."
Therefore I think the Proviso is useless. Nothing, 'tis
true, is appointed in the Bill, farther than the Entail
upon the persons named; and I suppose (as the Law
does) that those you have named shall have Issue; but if
they have not, the Common Law provides for it, which
is, the right Heirs of the Royal Family: But when you
say, "a Protestant Prince, &c." it seems to exclude the
right Heirs that are not; and to say, as in the Proviso
tendered, "This shall not be drawn into Example;" 'tis
only a caution and admonition, that this flattering Proviso will not bind up their Power. Rather than have a
hand in any thing of a Republic, I would have lost my
hand. Where there is a great Territory, and a warlike
People, as the English are, Monarchy is a Government
fit for that part of the World; the experiment of a Common-wealth will be impracticable. This Bill leaves the
descent of the Succession to the Common Law, and no
otherwise; let them be what they will, Protestants must
be in the Succession; and so they will, without this Proviso.
Mr Hales.] In this Bill, you have not thought fit to
go farther than the present King, &c. and in no Acts of
Succession farther than the Issue of persons in being:
But if you take the word "hereafter" not to preclude
any Protestant that has Right to inherit, it will comprehend the Prince of Wales, if he turn Protestant, and he
may challenge the Crown again. The words are exclusive
to Papists already, and there is no reason to clog the
Act with this Proviso: Therefore I would reject it.
Mr Ettrick.] I have seen the Proviso, and I believe
there is no design in it of favouring the Prince of Wales.
If the Throne be vacant, this goes to take away the
rightful Succession of other Princes, and is an Abdication
to the whole frame of the Government. If there be no
Heirs of those in the Entail, you have left the Government to the People. You have great reason to countenance all vindication of yourselves from a Commonwealth; and therefore I think the Proviso fit to be received.
Sir Christopher Musgrave.] As to the arguments of the
word "hereafter," if subject to such interpretation, then
you would do well to amend it with the word "hereafter." I would have no doubt to affect the Limitations
of the Succession in the Bill.
Mr Hampden, sen.] I never heard of this Proviso before. As it is penned, no Gentleman can be for it;
and when it is mended, nobody can tell whither it will
extend. You have already the Bill to establish the Government, and all people submitted to it, and you sit
here by it; and now you are going over again to what
you did so many months ago. You have provided against
all Popish Successors, and now you are going about to
do it a-new. I do believe, this comes from the agency
of some foreign Minister; and do this now in a new Bill,
and then you must let the King, the Queen, and Princess
Anne be heard. Why was not this spoken of sooner, in
all this time? And now to enter into such a matter of
State, now to bring in this, to put a doubt upon all
you have done already!—I am against it.
Mr Godolphin.] I hear it said, "Possibly this Proviso
comes from the agency of some foreign Minister." I
would have it known, I never took measures from any
foreign or domestic Minister. It looks, by the Proclamation, as if Dominion was founded in Grace—(and reads
the Proclamation.) Here is no notice taken of the Right
of the Princess of Orange's Title, but of her Merit only (fn. 4) .
That the Monarchy might be looked upon as hereditary.
and not elective, was my motive to bring in the Proviso.
Sir Thomas Clarges.] I conceive, the inducement to
bring in this Proviso, is, because the Limitation of the
Succession is very loose. There is no certainty of the
life of any man; and I would not have the Kingdom fall
into a Common-wealth; which it may, if the Limitation,
&c. goes no farther. I heard a Gentleman say, "We
did not wisely, not to keep things in our hands when we
had them." This is one reason, why I would have the
words added that are moved: Instead of "hereafter,"
"after the Limitations here mentioned."
Mr Sacheverell.] If there be any other person to be put
into the Limitation of the Succession, pray let us know
him, and not put this in general.
Col. Herbert.] I saw a Letter of a Sister of Prince Rupert's, wherein she was complaining of great hardship
done her children, that they were not regarded in the
Entail of the Crown; therefore I move, that they may be
Sir Henry Capel.] By what has fallen from the Gentleman, you see, foreign Ministers have been doing in this
matter; but you have it answered already, "That the
Heirs at Common-Law are asserted to succeed, for default of
those in the Entail." I have heard it talked, as if King William was King by the Divine Right, and Dominion founded in
Grace; then you had best put the Question, Whether
the King be King, or not? Is not the Clause in the Proviso, "of not drawing it into Example," arraigning all
you have done already? In the Long Parliament, when
the Court was carrying on their great designs of Popery
and Arbitrary Government, Gentlemen that opposed it
were called Common-wealths-men; and we are told of
"the Rebellion, and 1641, and cutting off the King's
head," and all this for opposing the Court's designs, when
they were about to destroy our Religion and Liberties.
It can never be a Common-wealth. When the Succession
in Henry VIII's time was turned this way, and that way,
it was put into the King's power to settle the Succession
by his Will: And where were the thoughts of a Common-wealth then? The first part of the Proviso is a reflection upon you, for omitting it before; and the second
there is no need of, or whether the Prince of Wales
comes in by it—Either a foreign Minister is in it, or a
stratagem from France; and I would throw it out.
Sir Christopher Musgrave.] I know not why we are told
of "France, and foreign Ministers." If we have not liberty to speak, let us go home. I know not what thoughts
other Gentlemen have of the Prince of Wales; I have
none: But I know we have had a Common-wealth, and
a Rebellion in 1641 also. If the thing be capable of
Amendment, it ought to be retained; and 'tis the Right
of every Gentleman to bring in a Proviso.
Mr Godolphin.] I defy any man to prove any such
thing as "corresponding with a foreign Minister," or
that I manage "a stratagem from France." Turn me out
of the House, if that be proved. This Proviso was suggested to me by no man.
Sir Henry Goodrick.] When I hear this fatal rencounter
we have had with France, and then these reflections here,
and that we may go into the Country,—these expressions
are made here, with a supposition that we have no liberty
of speech; but this, said at this time, when the French
are upon us, and who have had too much influence here;
and we are told of 1641. After the admonition of the
Speaker, nothing but the Vacancy of the Throne, and
the not Vacancy, occasions this business; and are we returning to "vacant," or "not vacant," upon our Petition of Right? And whoever speaks against it, doubts
the Government. The Common-Law leaves all to the
Right of the Succession, and there let us leave it.
Lord Falkland.] I disapprove of the Proviso, as it is
brought in; but it may be mended, so as to justify your
proceedings abroad. 'Tis said abroad, you have settled
the Government upon the King and Queen; 'tis true,
they have no children, and the Princess of Denmark none
that have lived, though married a great while; so there are
but three lives for it; if it should happen that these
should die without issue, where is the hurt of this Proviso? Fortify the Proviso against the tale of the Prince
of Wales. You have Protestant Princes abroad, and the
more you settle this, the more you protect them.
Mr Hawles.] Now I understand, by mending the Proviso with the word "hereafter," I am more against it
than I was at first. There has been talk of "Government
founded in Grace," but much more mischief if founded
in Right. This questions the whole Government. There
is not one word in the Act that can prejudice any foreign
Successor; but this, by a side-wind to come in, makes
me suspect it. When the City-Charter was questioned,
the King's Counsel against it said, "'Twas a Commonwealth in a Commonwealth;" therefore I am not for this
Proviso thus introduced.
Mr Somers.] I think there is no hurt in wholly leaving
out this Proviso. In the case of Henry IV, it was a solemn Judgment, that the Throne was vacant, and
then it was settled on the King's sons, and no farther by
name; for it would come into its own channel by succession of descent. In the Life of Henry VII, Lord Bacon
reckons it as one of the wisest actions of his reign, that
he limited the Crown no farther, but left it to descend.
Let us tread in the steps of our Ancestors; you have declared the Vacancy of the Throne; but to do this now,
would bring a suspicion upon what you have done:
Make your Succession so founded on Grace, that none
but Protestants succeed. This strikes at the whole
foundation of what you have done. Therefore lay it aside.
Mr Paul Foley.] This Proviso is of too great importance to be brought in by a Rider. 'Tis not fit, on the
sudden, to take any farther prospect of the Limitation
of the Succession by a Rider, but refer it to a farther
The Proviso was rejected.
[May 9, 10, and 11, omitted.]
Monday, May 13.
The House was informed that Sir Henry Monson [Member for
Lincoln] attended according to Order (fn. 5) .
Mr Garroway.] Before you call him in, pray make
some Order how to hear him, whether in his Place; and
what punishment you will inflict upon his refusal of the
Sir Thomas Clarges.] If he will not take the Oaths,
he cannot be a Member, and ought not to have a Place
Sir John Thompson.] I hope you will be as tender to
your Members, as the Lords are to theirs. If he has not
sat, I know not how he is culpable—The Bishops have
three months time to consider, &c. and I hope you will
give him that indulgence.
Sir Thomas Littleton.] We are no Court of Justice, but
we may dispose of our own Members: But if he refuses
the Oaths, you may send out a new Writ to chuse one in
Sir Thomas Lee.] If your Members refuse to take the
Oaths, their place is void; but, as for giving him time to
consider of it, it appears not yet that he refuses them,
I believe, in some time, you'll see the Government will
be obeyed; and in a few months you may see how the
Parliament will deal with such as are not of the same
Allegiance. Therefore I would give him time.
The Speaker.] You cannot hear him in his Place,
neither is it proper that he answers at the Bar, being
yet no Criminal; therefore let him come up to the Table, to be tendered the Oaths there.
Sir Henry Monson was then called in, and the Speaker thus
spoke to him:
The House having taken notice that you have staid a great while
about the town, and have not tendered yourself to take the
Oaths of Allegiance, and the Test, as you ought to have done,
hath summoned you to take them.
Sir Henry Monson.] I am sorry I cannot comply with taking the
Oaths, to qualify myself to sit in the House, for particular reasons, such as no way tend to the disturbance of the Government;
and I do submit myself to the pleasure of the House. He withdrew.
Mr Arnold.] He knows that the refusal of the Oaths
is a Crime at Common-Law, and by Statute-Law. I
would have him made an example.
Mr Edward Montagu.] I know him to be an honest
Gentleman, and as well inclined to the Government as
any man. In Charles II's time, he voted for the Bill of
Exclusion, and deported himself very well. What his
particular Reasons are for not taking the Oaths, I know
Mr Pelham.] I believe, as has been moved, you cannot regularly commit him, and if any man have a title
to your favour, he may. No man went better in the
former Parliaments; and I beg that no farther mark of
your displeasure be upon him, than to dismiss him from
Sir Thomas Clarges.] I never knew an honester man;
both the son, and the father, true public-spirited men.
I have sat long in Parliament with them. You know what
the Statute directs in this case of refusing the Oaths;
therefore I would not enlarge your jurisdiction farther
than sending a new Writ to chuse another Member in
Mr Leveson Gower.] I have sat in several Parliaments
with this Gentleman, but I did not expect this from him.
I would have him sent for in again, and a little time
given him to consider.
Resolved, That Sir Henry Monson be discharged from being a
Member of the House.
Lord Fanshaw then came up to the Table in the same mannet.
Lord Fanshaw.] I have been under a long indisposition; and
though I have been about town, in the evenings, yet I was under
a course of physic and diet; and since I was absent, an Act has
passed; and being not qualified by taking the Oaths, I could not
properly appear here.
The Speaker.] But, my Lord, are you willing to take
the Oaths now you are here?
Lord Fanshaw.] I must give a plain Answer to that Question;
I am not satisfied to take the Oaths. He withdrew.
Sir Thomas Littleton.] I suppose the House will take
the same course with Lord Fanshaw, that they did with
Sir Henry Monson.
Resolved, That Lord Fanshaw be discharged from being a Member of the House.
He served for the Borough of St Michael's, in Cornwall, upon
an Election, undetermined, depending.
Tuesday, May 14.
[In a Grand Committee.] On the Heads for a Bill of Indemnity (fn. 6) .
Sir William Williams.] I suppose you indemnify all
crimes, and all mankind, unless persons and things excepted.
Sir Richard Temple.] Take the Act of Indemnity of
Charles II before you, and then you will see the Exceptions. I would extend them to as few as may be. It will
be necessary to make some examples of those who have
endeavoured the ruin of their Country and Government.
Col. Austen.] I believe that, though persons within
these walls may be concerned, it will be done with all
worth; but let things find out persons.
Sir Thomas Clarges.] That Act of Indemnity of 25
Charles II, I hope, may be the better Precedent. Con
sider, first, what Exceptions you will make; and next,
what shall be pardoned; and next, consider that of 12
Mr Sacheverell.] Crimes of State are never to be forgiven. Name what Crimes are not pardonable, and they
will find out the persons.
Mr Carter.] If I take it right, the King has given us
some measures. If offences against the Government are
so far in the dark, you will never find out persons.
There is some discourse, without doors, that if we go
about things, we shall set the whole Nation on fire. I
hope the King's direction will be most acceptable to the
Sir Robert Howard.] I would willingly hear that Act
read; and many things in it must be in this: But there
are new-invented crimes in this age, that this Act cannot reach. We must go by things and men, and then
by such things and men as no age ever saw. I know
we have a large field of things and men: Things of the
worst nature are the largest field; therefore consider the
nature of things; and if I ever move in favour of thing
or man, I will tell you the reason, and unless some merit
induce me to it.
Sir Richard Temple.] I agree with Howard in all but
his last Motion; not that I am an Advocate for any
person, but for the whole Nation, if things involve
many you would not. Treasons are always excepted in
any general Act of Parliament. If we go to persons, we
shall agree, for we all know them; if to things, we are
in a wood, and shall never get out of it; and I despair
that the Act will ever come to good. I would put mens
minds in peace, and make examples only of notorious
Sir Henry Capel.] If it be the sense of the Committee,
that all shall be forgiven, I am content; but what we
do, is for satisfaction of the Government, not that any
Gentleman can be pleased with this. I think to begin
with things; and, to prevent heats, I take this idea; as
if in the country, they complain of hardships from the
Judges, men of the Robe, who throw dust in the eyes
of Juries; so if you take consideration of crimes against
the Laws, and the Government, use the rest with what
moderation you please, either by fines, or otherwise; and
begin with things.
Sir Joseph Tredenbam.] Consider of what consequence it
will be to make a multitude of Offenders. There are
many Offenders, and you know who they are. We know
the great men that have offended in the open light. There
is no other end in this Bill, but to reconcile mens minds to
the Government; and those you declare obnoxious, and
it is no severity upon them, we know. When France was
in Combustion, 'twas the great care of Henry IV to punish some, and leave the rest in some degree of favour.
I desire, therefore, that you will proceed against persons
that have been the most notorious Offenders.
Sir Robert Cotton.] The King has sent a gracious
Message to us about an Act of Indemnity. No Government can be so secure, as when satisfied that they have a
gracious merciful King. I know the consequence of the
beginning of the last Government. Those in the West did
see such a Shambles (fn. 7) , as made them think they had a Turk,
rather than a Christian, to their King. If you proceed
that way, of enquiring into things before persons, you
will leave such jealousies in people, as that they will not
think themselves safe; it will go so large, I fear it will
hazard the peace and safety of the Nation. The great
wheels, the primum mobiles, that have gone so violently,
and brought us into this Confusion, I move that you will
proceed against them, and that the King's gracious intentions may have farther effect, and those only excepted.
Mr Harbord.] I hope you will not pardon any of those
crimes condemned by Law already: They that changed
their religion. You are hard put to it, to find out Money.
Great men of 8, or 10,000l. per ann. I hope, may help
you. You punish men that do not take the Oaths and the
Test, and will you not punish those who have renounced
God Almighty? I move they may be excepted.
(fn. 8) .] I think the King in his Message has led
us, and showed us how to proceed for satisfaction of Justice. There is a crime, God says, he will not pardon, innocent blood. A Gentleman said, "The West was a
Shambles of their quarters;" and what made that Shambles?
It began in Law. It was the common discourse amongst the
Ministers, that the King cannot have Justice, and, in order
to that, began the violation of the City-Privileges, in the
choice of their Sheriffs.
Sir Robert Howard.] In those that were perverted and
changed their Religion, it was Treason. Suppose you name
the man, there must be an appendix of his crime; and must
that man be a sacrifice for that particular thing? So whatever man you name, you must name the thing. If there
must be so general a forgiveness of all, you must go equal.
You must either take notice of all; or forgive all things,
that the invention of times has found out of equal nature.
In the Bill for repealing Colonel Sidney's Attainder,
you repeal the murder, but not a word of the murderers:
Shall it be excused upon direction of the Judge? We know
what we did with Ld Chief Justice Keeling
(fn. 9) . Try one way
first; name any one man, by experiment, upon any one
Sir John Lowther.] To reduce matters home, without
foreign examples; we had often occasions for general pardons, formerly, when families thrust one another out of
the Throne, and then there was great need of pardons for
the subject. When Lord Strafford was charged in Parliament, and other great exorbitancies, though the crimes
and offenders were many, yet it was agreed, that such a
number should be named, who should be excepted out of
the general Indemnity. We are resolved, that these shall
be prosecuted by the Attorney-General, and we need not
descend into particulars here; but by general ideas, and so
Mr Hawles.] I am for excepting persons by particular
names; but we are now only upon methods. Certainly,
upon things, you intend not to pardon murder, nor robbery, &c. but now if you enquire into things, you
will utterly destory the Government, which in King
Charles II's, and all King James's time, was as ill as the
French Government. Instance in Cornish's Tryal, one of
the most barbarous Tryals (fn. 10) ! Had I been concerned in it, I
should have thought I deserved death as much as Vrats, that
killed Mr Thynne. Make it, that the Indemnity shall not extend to such and such persons, or such and such things.
Sir Richard Temple.] If you name the crime, you may
involve more than you think of. Do you mean every
man that had the least share in it? I mean only the notorious
persons. Persons have had pardons, and you must void
all those pardons before you can reach them; you must not
hunt the herd, you will never single any. I would begin
with the Chancellor (fn. 11) , a Lawyer, and he to destroy all
Law! I would except him from pardon in his honour and
Sir Henry Capel.] To answer Temple, he says, "If you
proceed upon things, you will engage those you would
not;" but are not you masters of your own methods? To
answer Lowther, if we are to except nothing but Treason,
we are in a Parliamentary way, and may declare Treasons.
As for the seizing Charters, there was nothing like that;
that cuts up all your Liberties by the root.
Mr Garroway.] I am at a stand what I shall offer for your
service. If you go to capital crimes, you will be tender,
and go but a little way. I would not dabble in blood; I
would, from my heart, forgive them, but from pecuniary
penalties I would not exempt them. You turned two
out of the House yesterday, for refusing the Oaths. You
will not think such a man fit for employment. Upon the
first Head, resolve what you will make capital, then for
sines, and not to bear Office for the future.
Col. Austen.] I hear it said, "that people guilty of
these great crimes, are known;" but I lived in a sphere,
at such a distance, I could not know them. The work has
been done by a Spirit in the dark, and unless you conjure down this Spirit, you will never attain your end. Here
has been something said of a Proclamation, &c. I would
set up marks of severity for public Justice; this is part
of the King's directions. I would distinguish the things,
and let the persons be who they will.
Sir Christopher Musgrave.] I must confess, I am unfit to
speak in a business of so great weight. I think there is a
necessity to proceed upon persons, and not things, because
you are told, from the Bar, "that possibly the Offences may
not be Treason, by 25 Edward III, but by your legislative
Power, you may proceed by Attainder." If so, then proceed as tenderly as you can, because 'tis a declaration of
Treason, and is always made as little use of as possible. For
this occasion your Bills of Attainder will be without number; therefore I move that you will proceed upon persons,
and not things.
Col. Birch.] I think it absolutely necessary that you come
to some conclusion before you rise. I would not leave the
matter under an alarm, but, before you rise, leave them to
what they shall trust to. If things must find out persons,
you are in for a great while. Methinks you may go a
nearer, and a surer way; for when you come to an Act of
Oblivion, I suppose, (I dare not impose) you resolve to
name your number capable of suffering Life or Limb, suppose twenty, or forty, or as many as you will, (I am but for
a small number for Life or Limb) and that blank be filled
up; and, for all others, though not excepted for Life or
Limb, yet I would except them from bearing any share of
the Government. The thing I drive at and design, is, to
make an end. After putting in "Life and Limb," he
may say, "I shall escape without an Office." Put a certain
number, and you will put the Nation out of fear, and you
have done your work.
Sir Robert Howard.] When you name Heads, let it be
under death, fine, or incapacity of bearing Office; then
you will be easier under all the Debate.
Mr Hampden, sen.] Where mercy is to be showed, I
shall be as forward as any man, but I think Justice is necessary. If you go on in this way, you will hardly come
ashore. If you enumerate all sorts of crimes, you will go
the farther from your end, they are so many, and of so
many sorts; one of the greatest crimes that struck at your
Foundation was that of Blood. But the Foundation of
these things was laid so early, that it will be a great way
to look back. How many are concerned in the greater
degree, and how many in the less, as particeps criminis?
This will be a very long resolution. Now whether the men,
or names of crimes, shall be first? To save a friend, that
will be impossible to wrest out of human nature, but your
end is to terrify men for the future. What is else the end
of decimating armies? When the Act of Indemnity passed in 1660, (perhaps in as great a Revolution as ever the
Nation was under,) you set down ten, or twenty, (I will not
offer the number now) excepted for life, and so many for
pecuniary mulcts, and incapacity of Offices, according to
degrees of crimes.
Sir Henry Capel.] I am neither afraid of Sea nor Wood
to enter into; will not you except the bloody Judges?
And those who were of opinion for the Dispensing Power?
When you have passed the Vote, cannot you except what
persons you please?
Mr Harbord.] There is a great difference betwixt the
Bishop of Rochester's (fn. 12) Case and the Chancellor's, a great inequality; and therefore they ought to be weighed in the
Sir John Lowther.] I believe it impossible to name crimes
before persons; the season of the year cannot admit it. If
you enquire into circumstances, the first promoter and adviser, if you keep this in suspence, it will be the greater
dissatisfaction; therefore I am for naming persons before
Mr Garroway.] I am still of the same opinion that you
will sooner come to your end, by voting Heads on capital
offences, and then go to your men. I am not for forty nor
fifteen, but put it upon that Head, "not exceeding ten;"
you may have guess at names, and put in, as in the last
Indemnity, the greatest number. If named openly, there
may be misfortunes and feuds of families hereafter.
The Speaker.] Garroway mistakes. There was no such
balloting as he mentions. In the Convention, it was only
for sending Gentlemen to go Commissioners to the King
into Holland. Then for excepting persons out of the Act,
the first Vote was, "but seven for Life, and twenty more
for other pains and penalties," and those were nominated
in the House.
Mr Hampden, sen.] I rise only to rectify Powle. All
the Regicides in the Act of Indemnity, 1661, were notified by the crime; the rest, for other offences, were deprived of bearing Offices. Many of the House may remember there was a long Debate upon the persons upon
whom the Proclamation went out; it was a great Debate,
whether they should be hanged, or not, because the Act
said, "they should not be pardoned."
Resolved, That it is the Opinion of this Committee, That, in proceeding upon the Bill of Indemnity, the Crimes shall be first declared, for which some Persons shall be excepted, for vindication
of public Justice. Agreed to by the House.
Mr Harbord.] I am sorry for the misfortune of Lord
Chief Justice Herbert. I told you before, there would be
tenderness. There is a great necessity for Money, and
can you do better than supply the Crown by these mens
Sir Richard Temple.] If you proceed by Impeachment,
or Bill of Attainder, you must express all their crimes. If
you will go upon all the Heads in the paper, (I am no advocate for any body) you will involve a great part of the
Nation; therefore go upon the first Question.
Sir Christ. Musgrave.] I appeal, whether the whole Debate to-day was not upon things, and not persons? And
therefore your first Question must be, whether you will
not proceed upon persons.
Mr Sacheverell.] I am against that Question, for if it
pass in the Affirmative, you put persons upon offending
again, and cannot secure yourselves against others in that
Bill. They have taken away Offices, and Estates, from particular persons, and now you will indemnify all those you
name. Some examples I would have, and not many, that
they go not on to do again what they have done. For
death I agree with the smallest number, and the fines not
extravagant; and those who have betrayed their trust, not
to be trusted again.
[To proceed on Thursday.]